South Carolina Supreme Court Upholds Testator (in this case the Godfather of Soul) Rights

Financial Planning is reporting on a South Carolina Supreme Court case that tells the State Attorney General to respect testator intent.

http://www.financial-planning.com/blogs/Was-the-Godfather-of-Soul-Estate-Hijacked-2683573-1.html?pg=2

James Brown laid out clear intent in his will to provide for the education of the poor in Georgia and South Carolina. However, there was a claim against the estate from a woman who claimed to be legally married to Brown after he made the will and their son, who was also born after the will was made.

After prolonged litigation, the State Attorney General stepped in on the basis of representing the rights of the intended charity, settled the matter. Part of the settlement included removal of the current trustees of the charity. They sued and ultimately the state Supreme Court took a look and determined that the AG overstepped his bounds in removing the trustees and settling with the woman and son.  The Supreme Court stated, “The compromise orchestrated by the AG in this case destroys the estate plan Brown had established in favor of an arrangement overseen virtually exclusively by the AG.” 

This case highlights the high value American jurisdictions place on testator intent. Of course, this case also highlights the need to review your estate planning documents as your circumstances change, such as marriage, divorce, and the birth of children.

Holographic Wills are Causing a Headache in the Kinkade Estate

Forbes is reporting on the strange case of the Thomas Kinkade estate.
http://www.forbes.com/sites/trialandheirs/2012/07/09/did-artist-thomas-kinkade-change-his-will-while-drunk/

The ubiquitous artist died in April 2012, leaving behind an estranged wife, girlfriend, and according to the girlfriend, two handwritten (called "holographic") wills. The wills leave extensive gifts to the girlfriend. In California, where the probate has been commenced, the requirement for witnesses is waived if the entire will is handwritten by the testator. In this case, witnesses would have been really handy to let the court know whether Mr. Kinkade had the capacity to execute these wills. A handwriting expert, hired by The Mercury News expressed the opinion that the writer was likely "three sheets to the wind", which casts great doubt whether he had the capacity to execute these documents.

Minnesota, unlike California, does not allow for holographic wills. If Minnesota law governs the execution, it must be witnessed by two people. If you have wishes you want respected at your death, meet with a licensed attorney to ensure it meets the requirements your state has on a will... and don't be three sheet to the wind when you sign it.

Creditor's Claim in Jackson Estate

TMZ is reporting that Michael Jackson's personal assistant is filing a creditor's, claim against the Jackson estate, three years after the singer's death.
http://www.tmz.com/2013/01/06/michael-jackson-assistant-creditors-claim/

In Minnesota, under Minnesota Statute 524.3-803, most creditors' claims are barred, meaning that the creditor is out of luck regardless of how good the claim is, up to one year after the death of the debtor and in many cases earlier.

Seemingly a catch under Minnesota Statute 524.3-104 , is that creditors' claim can not be brought until a personal representative is appointed. That leaves a small or, in some cases, non-existent window to bring a claim. So what's a responsible creditor in Minnesota to do? A creditor can petition the court to open the probate 45 days after the death of the debtor and be named or request another party to be named as a personal representative, under Minnesota Statute 524.3-203. This can be a viable option in extreme cases. In any case, hoping to get paid back three years after the death isn't the best idea, in Minnesota or anywhere else.

I Did a Will Years Ago and Need to Make Changes. How Do I Do That?

If you’re looking at a will that’s a few years old, you might see things you want to change. The natural inclination is to scratch what no longer makes sense and write in a new direction. This is not permitted in Minnesota. How is a probate judge supposed to know that someone else didn’t find your will and scratch out the parts they didn’t like? In order to be recognized, changes must be done in the same way the will was done in the first place, most importantly by having two disinterested people witness the change. One option is a codicil, or amendment, to the will. This works well for straightforward changes like who serves as personal representative. If there are a lot of changes to be made or if you don’t want interested people to later on find out you made a change, you should consider doing a brand new will. If your old will doesn’t reflect your current intent, speak with a licensed attorney to make sure your changes are recognized.

If You Get a Divorce, You Need to Do Estate Planning.

If you've gotten a divorce, you no doubt have had your fill of attorney bills and court appearances, even in the best of circumstances. But, just because your divorce is final, doesn't mean all of the legal issues arising from the divorce are neatly tied up with a bow. If you have significant assets and minor children, you want to set up a trust to manage the money for them. Perhaps even more importantly, through proper planning you can choose who manages the money. This is important if your ex isn't exactly your first choice. Another sticky issue could be naming a personal representative to wrap up your affairs. If your estate needs to be probated, which is likely if you own real estate, a personal representative will be appointed. Prior to the divorce, your spouse would have been first in line to serve in that capacity and the court's natural choice. Now that you're not married, the best person to serve may not be clear. Which adult-child/parent/sibling should serve? Proper planning can let you let the court know who you prefer. After all, after going through a divorce, you out of anyone knows the importance of trying to avoid a court fight. Planning now can help avoid that for your loved ones.

Repost: What do you mean by an estate plan?

I've been meaning to post on guardianships for the past two months... but I've always seem to found better things to do in Minnesota during the all too short summer months. So, here's an oldie but (hopefully) goodie from 2008.

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An estate plan is an umbrella term that refers to a plan as to what happens when someone dies or is incapacitated. Issues to consider are where your stuff will go, who will take care of your kids, who will make my decisions if you can't make them, how to make the probate process quicker and less expensive, continuation of a family farm or business, and what the effect of taxes and state liens will be.

There can be many pieces of an estate plan depending on the needs of an individual. Something that just about everyone should have is a will. Without a will, the state will apply the fallback provisions in state law to determine who gets your property, which may or may not follow your intent. Additionally, dying without a will which can specifically call for an expedient probate process, can cause a longer, more expensive probate process.

Also, everyone should have a health care directive, which states who makes the health care decisions for you in the event of your incapacitation and gives direction as to your wishes. This health care directive needs to include a HIPAA waiver to allow the hospital to release protected medical information to this person.*

In the same vein, everyone should consider a power of attorney who can deal with your financial affairs in case of your incapacitation. However, once created, that person has as much right to your finances as you do and you should only execute a power of attorney if you have a trusted individual in place.

Besides these documents, other documents can be executed, trusts established, and business entities created which address your specific needs. This is why it is so important to contact a licensed attorney to look at all of your circumstances to craft an estate plan to fit your needs. 

 *Although HIPPA specifically allows for health care agents to obtain health care information, not all medical professionals are up to date on the intricacies of federal law. A waiver makes it clear to anyone that you desire your agent get the information they need to make a decision.

Obscure Will Requests, Olympic Edition

A few days ago, I had the best non-sports, sports radio station in Minnesota, KFAN, on in the background and a tidbit caught my attention. For those of you not familiar, during the 1972 Olympics, the US and Soviet men's basketball teams met in the gold medal finale. During the last few seconds of the game, confusion of officials, among other things, led to controversy as to whether the Soviets won fair and square. The US team declined silver and those medals still likely sit in some Olympic Committee vault in Switzerland. One of the players, Kenny Davis, was interviewed. His will reportedly states that his wife and descendants are prohibited from accepting silver.

In many ways, obscure will requests can be just that, requests. They can help inform family members about your wishes, but may have questionable enforceability.

Sometimes, these type of requests are viewed as "precatory" or "wishful" if the statement has any language demonstrating a recommendation, request, wish, or expectation (such as "I hope my family never accepts the silver medal") as distinguished from an express direction, (such as "My family is prohibited from accepting the silver medal"). In those cases, courts, Minnesota's included, have a history of going further than unquestionably applying the request, but rather dig deeper to determine what the true intent of the will writer (testator) was and attempt to look at the present day circumstances through their eyes to figure out what the person would have done, had they anticipated those circumstances. Sometimes, in using this test, a court ends up straying from the letter of what's in the will, for example in Long v. Willsey, 156 N.W. 349. The court in that case said it this way; "to ascertain and give effect to the intention of the testator should be the guiding purpose in construing a will. To that end the meaning of isolated clauses and paragraphs may be modified by the evident intention deduced from a consideration of the whole document."

Even if the wording is viewed as an express direction, practicality can be an obstacle. If one family member were to go against an express direction, say accepting a silver medal, other family members might want to bring an action to prevent it, but might not have the spare cash lying around to pay the legal fees to bring the question to court.

One solution to the money problem may be to condition other gifts in the will on following the request. However, Minnesota courts can ignore the condition if they determine the condition is against public policy. Although this is rare, care should be taken to reduce that risk.

In the end, obscure will requests can be complicated, both legally and practically, to enforce, but they can help communicate your wishes to your heirs, devisees, and personal representatives.

Here's a link to the KFAN podcast. http://www.kfan.com/player/?mid=22292934&station=KFXN-FM&program_id=KFAN_Barreiro.xml&program_name=podcast

Here's a link to a Sports Illustrated column with more information on the controversy. http://sportsillustrated.cnn.com/vault/article/magazine/MAG1003894/7/index.htm

Oh, and U-S-A, U-S-A!